“How many of you think you’d never confess to a crime you didn’t commit?”
I stared out at some confused, some thoughtful, and some disinterested faces in the sea of San Diego State University undergraduate students I was teaching. About ten hands went up among about a hundred students in the lecture hall. It wasn’t an accurate measure of how many actually believed this, because they’d all been in an educational setting long enough to know raising their hands might lead to an unwanted public interaction. I noticed all the raised hands were men.
I pointed to one of them. “Why do you think you’d never confess?”
“I just don’t think I would.”
“Yes, but why?”
He shrugged. “I just don’t think I would.”
That really was the extent of it. The ten students, like many people, just didn’t think they’d confess to something they hadn’t done. They had no basis to believe this. They had never been kept up all night while being screamed at by homicide detectives. They had never been told they’d better go along with a police officer’s version of what happened, or they’ll spend the rest of their lives in prison. They had never been lied to about evidence implicating them in a crime.
The so-called third degree (a term with Shakespearean and Masonic ceremonial roots meaning intense interrogation) continued unregulated in the United States until the 1936 case of Brown v. Mississippi. In that case, police officers beat three Black men until they confessed. The United States Supreme Court ruled, in a landmark decision that now seems obvious, that convicting people based on confessions obtained through beatings was unconstitutional. There’s no doubt these beatings continue to this day in the United States and around the world, but they are not the normal course of obtaining confessions in our legal system. Instead, police obtain confessions through psychological warfare. As a result, the public finds it difficult to understand why an innocent person would confess when subjected to less violent interrogation techniques.
Despite what crime shows and movies portray, there are two fundamental truths about police interrogations:
- Police officers do not have superpowers to tell if people are telling the truth; and
- Police officers do not focus interrogations on getting to the truth. Instead, officers focus on getting the suspect to agree with the theory the police often have already developed.
In their article “The Problem of False Confessions in the Post-DNA World,” Steven Drizin (codirector of the Center on Wrongful Convictions) and Richard Leo (a longtime scholar on false confessions) distinguish interviews from interrogations.
Interrogation is different than interviewing: whereas the goal of interviewing is to obtain the truth through non-accusatorial, open-ended questioning in order to gather general information in the early stages of a criminal investigation, the goal of interrogation is to elicit incriminating statements, admissions and/or confessions through the use of psychological methods that are explicitly confrontational, manipulative, and suggestive. The purpose of interrogation is not to determine whether a suspect is guilty; rather, police are trained to interrogate only those suspects whose guilt they presume or believe they have already established.
The most common technique for obtaining confessions over the past fifty years has been the Reid Technique. A psychologist and former police officer, John Reid, developed this “system” for interrogation around 1955. The Reid Technique involves isolating a suspect away from lawyers, family, and friends in a small interrogation room where interrogating officers use the following nine steps to obtain a confession:
- Step 1. Tell the suspect there is overwhelming evidence of their guilt. This may involve the interrogator lying about evidence implicating the suspect (e.g., “We’ve got a video of you committing the murder.”).
- Step 2. Shift the blame away from the suspect to some other person or set of circumstances that prompted the suspect to commit the crime (e.g., “I can understand why you would kill him. He was disrespecting you.”).
- Step 3. Never allow the suspect to deny guilt (e.g., “There is no point in saying you didn’t do it. You did. All the facts tell us that.”).
- Step 4. When the suspect gives reasons why he or she did not or could not commit the crime, build them into the guilty narrative (e.g., “I wouldn’t kill her. I loved her”; answer: “Sure, you loved her. That’s why when she was interested in other men you got so angry.”).
- Step 5. Keep the focus of the suspect on the investigator’s guilt narrative. Look them in the eye, pose questions, interact. Keep the suspect from thinking about their punishment.
- Step 6. Look for nonverbal signs (e.g., crying, head nodding) that you are getting closer to moving the suspect toward a confession. Be sympathetic and urge suspect to tell the truth.
- Step 7. Pose the “alternative question” (e.g., Don’t ask, “Did you kill your wife?” Ask, “Did you decide to kill your wife a long time ago or was the decision spontaneous?”).
- Step 8. Once you have an admission of guilt, get the suspect to give details. Do it in front of other witnesses, so the suspect knows more than one person has heard the confession.
- Step 9. Document the suspect’s admissions and have them sign the confession.
Note that none of these steps are focused on getting the suspect to tell the truth. They are all focused on getting the suspect to agree with the interrogators.
Leo and Drizin quote another paper written by Leo with coauthor Richard Ofshe to explain why innocent people subjected to this technique often confess: “Investigators elicit the decision to confess from the innocent in one of two ways: either by leading them to believe their situation, though unjust, is hopeless and will only be improved by confessing; or by persuading them they probably committed a crime about which they have no memory, and that confessing is the optimal course of action.”
Over the past few years, the Reid Technique has decreased in popularity as it has become apparent that it often leads to false confessions. In a study of the first 325 DNA exonerations in the United States (1989–2014), innocent defendants falsely confessed or made admissions in 27 percent of those cases.
Jurors often don’t believe that innocent people confess, even when subjected to the psychological pressure of interrogation. There is also a general belief that the law has evolved in the United States to protect people against interrogations. Anyone who has watched a crime show or movie that takes place in the United States over the past fifty years can probably recite the warnings police typically give before an interrogation. Those warnings come from the 1966 Supreme Court decision in the case of Miranda v. Arizona: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”
In Miranda (and the case of Escobedo v. Illinois two years earlier), the Court attempted to address the precarious situation suspects are in after arrest and before their first court appearance. Typically, until the first court appearance (unless there has been an indictment), a defendant doesn’t have a right to a lawyer. Therefore, the police could question a suspect prior to these decisions without worrying about an annoying defense attorney interrupting their process.
The Miranda decision recognized that “without proper safeguards, the process of in-custody interrogation of persons suspected or accused of a crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Thus, the Court ruled, “In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights, and the exercise of those rights must be fully honored.”
All that sounds great in theory, but the reality is that there are many ways around the Miranda rule, and they often lead to false confessions in the middle of the night before the arraignment courts open. First, the Miranda rule only applies to a “custodial interrogation,” meaning it only applies to people who have a reasonable belief that they are not free to leave and are being subject to “words or actions reasonably likely to elicit an incriminating response.” Often, police will tell a suspect they are free to leave before they begin interrogating to get around Miranda.
The Court has also found that Miranda only applies in a “police dominated atmosphere.” Therefore, Miranda doesn’t apply if a suspect is questioned by an undercover police officer, even if that officer is pretending to be a suspect’s cellmate. The Court has endorsed these kinds of shenanigans and has specifically said the police can lie to get a confession. Sometimes, the simple lie of the police having prosecutorial, judicial, and juror powers to decide charges and sentencing can cause a person to falsely confess if the deal seems too good to pass on.
Perhaps the most significant reason Miranda doesn’t stop innocent people from falsely confessing is the remedy for a Miranda violation and the Court’s rejection of the “cat out of the bag” argument.
The result of a Miranda violation is that any statement obtained in a custodial interrogation without a waiver of Miranda rights can’t be used during trial. However, that doesn’t stop the police from going through all the steps of the Reid Technique without advising a suspect of their Miranda rights. Once a confession is obtained, the police can then obtain a waiver and get a second confession. The court may toss out the first confession—made by the suspect prior to the Miranda waiver—but will admit the confession obtained after the Miranda waiver. And one confession, true or false, is enough to gain a conviction.
The “cat out of the bag” argument, in relation to the second confession after the Miranda waiver, is that, in the suspect’s mind, it’s pointless to assert their right to silence and demand a lawyer be present for the questioning after confessing. The cat is already out of the bag.
The Supreme Court specifically rejected this argument in Oregon v. Elstad (1985). In that case, an eighteen-year-old suspect was questioned in his family’s living room about a burglary without the benefit of Miranda warnings. The suspect confessed, and the police arrested him. The police then gave the suspect his Miranda warnings. After that, the suspect waived his rights and gave a second confession at the police station. At trial, the court admitted the second confession into evidence. Not surprisingly, the prosecution at trial only needed one confession to get a conviction, so the pre-Miranda waiver statements become unimportant when police secure a post-Miranda waiver confession.
Furthermore, many suspects simply waive their rights after the police tell them it’s a “mere formality” and an “opportunity to get their side of the story on the record”; or that “only guilty people with something to hide refuse to waive their rights and talk.”
Since the Supreme Court handed down the decision in Miranda, police officers have been figuring out ways to operate in formal compliance with the rules, but in profound contrast with the spirit of the safeguards. Chuck Weisselberg, a professor at University of California, Berkeley, and a former federal defender, wrote in his article “Mourning Miranda” that after reviewing the various police techniques to get around the rules of Miranda, he concluded that “little is left of Miranda’s vaunted safeguards and what is left is not worth retaining.”
Miranda has also had a negative effect on the law as it relates to the definition of a “voluntary” confession. As long ago as 1897, in the case of Bram v. United States, the Supreme Court discussed the principle that involuntarily obtained confessions violated the Fifth Amendment. In 1968, in the case of Greenwald v. Wisconsin, the Court held that when police obtain a confession from a suspect after they had deprived him of food, sleep, and medication, the confession was inadmissible because, when looking at the “totality of the circumstances” in how the confession was obtained, it was involuntary. More recently, however, we’ve seen courts ignore strong indicators that a confession is involuntary where the police obtained a waiver of Miranda rights.
Finally, Miranda only protects defendants if the police are willing to play by the rules. When they don’t, it will likely be the word of a criminal defendant calling foul play versus a police officer claiming everything was by the book.
Excerpted from You Might Go to Prison, Even Though You’re Innocent by Justin Brooks, published by the University of California Press. © 2024 by Justin Brooks.
Image: Marija Saric/Unsplash